Kelsen in Paris: France`s Constitutional Reform and the Introduction

ARTICLES
Kelsen in Paris: France’s Constitutional Reform and the
Introduction of A Posteriori Constitutional Review of
Legislation
By Federico Fabbrini1
A. Introduction
On 23 July 2008, the President of the French Republic promulgated – two days after
the final vote of the two chambers of Parliament sitting jointly in Congrès
(Congress) – the constitutional revision bill “de modernisation des institutions de la
Vème République” (of modernization of the institutions of the Fifth Republic)
n° 2008-724.2 The bill was mainly based on the research work done by a comité des
sages (expert committee) “de réflexion et de proposition sur la modernisation et le
rééquilibrage des institutions de la Vème République” (for the reflection and the
proposition on the modernization and rebalancing of the institutions of the Fifth
Republic).3 It had been presented by the Government to Parliament on 23 April
1
Federico Fabbrini is a PhD student at the Law Department, European University Institute. He holds an
undergraduate degree summa cum laude in European and Transnational Law at the University of Trento
School of Law (Italy) and a JD summa cum laude in International Law at the University of Bologna School
of Law (Italy). He was aggregated fellow at the Ecole Normale Supérieure Paris (France) in 2007 and a
visiting student at the University of California Berkeley, Boalt Hall School of Law (USA) in 2005. Email:
[email protected].
The full text of the revision bill is published on the Official Journal of the French Republic n. 171 of 24
July 2008 and available in French in the web site of the Government at:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte= JORFTEXT000019237256 as well as is in the
web
sites
of
the
National
Assembly
at:
http://www.assembleenationale.fr/13/dossiers/reforme_5eme.asp
and
of
the
Senate
at:
http://www.senat.fr/dossierleg/pjl07-365.html, last accessed 25 September 2008. These websites also
contain in French the bill presented by the Government and all the documents of the parliamentary
revision procedure, including the report of the Law Commissions, the amendments proposed and the
text of the bill as approved in both Chambers. For an overview of the political context in which the
revision took place see: Stefano Ceccanti, Le istituzioni ed il sistema politico dopo il primo quinquiennato, in
LA FRANCIA DI SARKOZY, 27 (Gianfranco Baldini & Marc Lazar eds., 2007); Paolo Passaglia, Le elezioni
legislative in Francia: più conferme che novità, 4 QUADERNI COSTITUZIONALI (QUAD. COST.) 860 (2007)
2
The full text of the research work is available in French in the web site of the Comité at:
http://www.comite-constitutionnel.fr, last accessed 25 September 2008. The website also provides in
3
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2008 and twice voted for by the Assemblée Nationale (National Assembly) and the
Sénat (Senate).
According to Article 89 of the 1958 French Constitution,4 which sets out the
amendment procedures,5 “(1) The initiative for amending the Constitution shall
belong both to the President of the Republic on the proposal of the Prime Minister
and to the members of Parliament. (2) A Government or private member's bill for
amendment must be passed by the two Assemblies in identical terms. The
amendment shall become definitive after approval by referendum. (3) Nevertheless,
the proposed amendment shall not be submitted to a referendum when the
President of the Republic decides to submit it to Parliament convened in Congress;
in this case, the proposed amendment shall be approved only if it is accepted by a
three-fifths majority of the votes cast. The Bureau of the Congress shall be that of
the National Assembly”.
The constitutional bill n° 2008-724 “is a coherent ensemble, that proposes a global
and ambitious institutional change”6 and since roughly 33 articles over 89 of the
French Constitution of 1958 have been changed, the bill has been called “the most
important revision to which the Fundamental Law has been submitted”.7 All
branches of Government are affected by the reform, which operates in three
directions. A first series of provisions is aimed at renovating the exercise of the
executive power by solving the ambiguous diarchy between the President of the
French the Presidential decree establishing the Comité as well as the name of its 12 members and all the
documents thereof among which the final report entitled UNE VÉME RÉPUBLIQUE PLUS DÉMOCRATIQUE
(2007). For an overview of the work of the Comité and an early comment on its proposals see: Federico
Fabbrini, Francia: è arrivata l’ora dell’exception d’inconstitutionnalité? 1 QUAD. COST. 150 (2008); Federico
Fabbrini, Breaking from Tradition: Reshaping the French System of Constitutional Review, 2 WASHINGTON
UNDERGRADUATE LAW REVIEW (WULR) No.1 1 (2008)
4
The full text of the French Constitution is available in English in the International Constitutional Law
web site at http://www.servat.unibe.ch/law/icl/fr00000_.html, last accessed 25 September 2008.
BERTRAND MATHIEU & MICHEL VERPEAUX, DROIT CONSTITUTIONNEL 220 (2004). Since the constitutional
revision of 1962, however, another way of amending the Constitution has been found in Article 11 that
affirms: “The President of the Republic may, on the proposal of the Government during sessions, or on a
joint motion of the two Assemblies published in the Official Journal, submit to a referendum any bill
dealing with the organization of the governmental authorities […]”. See, Dominique Rousseau,
L’invenzione continua della V Repubblica, in L’ORDINAMENTO COSTITUZIONALE DELLA V REPUBBLICA
FRANCESE, 34, 75 (Dominique Rousseau ed., 2000)
5
6
UNE VEME REPUBLIQUE PLUS DEMOCRATIQUE, 7 (2007)
7
Patrick Roger, La derniére mue?, in LE MONDE, 21 May 2008
2008]
A Posteriori Constitutional Review in France
1299
Republic and the Prime Minister,8 recognizing the supremacy of the first and at the
same time limiting his prerogatives. A second set of measures is devoted to the
legislative power with the goal to rehabilitate the role of Parliament by eliminating
some of the harsher instruments of rationalized parliamentarianism introduced in
1958.9
A third field of intervention then, concerns judicial power and droits du citoyen
(rights of the citizen) and certainly the most noteworthy provision here is the
introduction of a new form of a posteriori constitutional review of legislation
(contrôle de constitutionnalité). Indeed, even though all the changes are of great
relevance, this one constitutes a “true revolution”10, since France was one of the few
democracies that didn’t allow its courts to review whether acts of Parliament
infringed over the fundamental rights of citizens. As such, I will devote the paper
to this specific topic, with the purpose of highlighting the magnitude of the reform
and its rupture with the French constitutional tradition. As I will argue, the major
effect of the constitutional revision is to import into the French legal system the
ideas of constitutional adjudication elaborated by Hans Kelsen.
Kelsen, a Czech jurist and the author of the Reine Rechtslehre (Pure Theory of Law),11
is the architect of the centralized model of constitutional review.12 Drawing
inspiration from the American constitutional system, Kelsen believed that the
Constitution ought to be the supreme law of the land and that no statute could
violate it. However he did not support the idea that ordinary courts should have
the duty to verify the compliance of acts of Parliament with the Grundnorm
(Fundamental law), on the understanding that the function of constitutional review
was in a sense a legislative function, even if purely negative.13 He supported,
therefore, the institution of ad hoc (special) Constitutional Tribunals, charged with
8
CARLO FUSARO, LE RADICI DEL SEMIPRESIDENZIALISMO, 75 (1998)
9
STEFANO CECCANTI, LA FORMA DI GOVERNO PARLAMENTARE IN TRASFORMAZIONE, 107 (1997)
10
Gerome Courtois, Le Parlement à qui perd gagne, in LE MONDE, 21 May 2008
HANS KELSEN, REINE RECHTSLEHRE (1960). English translation by Max Knight: PURE THEORY OF LAW
(1989)
11
12
MAURO CAPPELLETTI, IL CONTROLLO GIUDIZIARIO DI COSTITUZIONALITÀ DELLE LEGGI NEL DIRITTO
52 (1972)
COMPARATO
13
Michel Rosenfeld, Constitutional Adjudication in Comparative Perspective: The European Model as Against
the American in Terms of Politics, Law and Interpretation (Association of American Law Schools, Conference
on
Constitutional
Law,
Washington,
5-8
June
2002)
available
at:
http://www.aals.org/profdev/constitutional/rosenfeld.html, last accessed 25 September 2008.
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the specific duty to review the constitutionality of legislation and whose judges
should be nominated intuitu personae (with special criteria).14
To assess the impact of a transformation that, metaphorically, brings Kelsen in
Paris, I will structure my paper as follows. In part B, I will give an overview of the
main characteristics and of the evolution of French constitutional review, analyzing
the historical French distrust toward an institution that was considered to be the
instrument of the gouvernment de juges (government of judges). In part C, I will
illustrate the main features of the new form of a posteriori constitutional review
introduced by the revision bill by describing its technicalities as well as certain
caveats that need to be taken into account while considering the reform. Finally, in
part D, I will underline how much this constitutional reform is inspired by the
theorical elaboration of Kelsen, and what are the effects of this Kelsenian legacy on
the system of human rights protection in France.
B. Rousseau in Paris
Traditionally France has been averse to judicial review of legislation15. Since the
Revolution of 1789, a strict separation of powers rule prevailed and the judiciary
was not given the right to interfere with the activities of the legislature. While
during the Ancient Règime judges could contest the legitimacy of a bill passed by the
legislative power, “no court since the Revolution has ever invalidated or otherwise
refused to apply a statute on the grounds that it was unconstitutional”16. Thus,
contrary to what happened in the United States (where the Supreme Court17 ,”with
a stroke of genius”, acknowledged its power to review legislation,18 making true
Madison’s motto that “ambition must be made to counteract ambition”19),
supremacy of Parliament and the lack of judicial review have been the defining
Jörg Luther, La composizione dei tribunali costituzionali e le autonomie territoriali, in LA COMPOSIZIONE
CORTE COSTITUZIONALE: SITUAZIONE ITALIANA ED ESPERIENZE STRANIERE, 67, 76 (Adele Anzon &
Gaetano Azzariti eds., 2004)
14
DELLA
Michel Troper, Judicial Power and Democracy, in 1 EUROPEAN JOURNAL OF LEGAL STUDIES (EJLS) No.2 1
(2007)
15
16
ALEC STONE SWEET, THE BIRTH OF JUDICIAL POLITICS IN FRANCE, 8 (1992)
17
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Wolfgang Hoffmann-Riem, Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of
Constitutional Questions in the United States and in Europe, in 5 GERMAN LAW JOURNAL No.6, 685, 687
(2004)
18
19
FEDERALIST PAPERS, number LI (J. Madison)
2008]
A Posteriori Constitutional Review in France
1301
features of French “’Jacobinian’ constitutionalism” since the time of the
Revolution.20
The theorization of Jean Jacques Rousseau was of particular relevance in shaping
the traits of French Republicanism. According to the Swiss philosopher, “only la
volonté générale (the general will) can direct the State according to the object for
which it was instituted, i.e., the common good”21. Since the general will “considers
only the common interest”22 - diverging from the will of all, which “takes private
interest into account, and is no more than a sum of particular wills”23 – it ought be
embodied in an organ representing the social compact, i.e. the legislator, and
expressed through general and abstract laws. The Declaration of the Rights of Men
and Citizen of 1789 codified this vision, stating in its Article 6, “la loi est l’expression
de la volonté générale (the act of Parliament is the expression of the general will)”.
The consequence of Parliamentary sovereignty was to reduce the role of judges to
that of “la bouche qui prononce les paroles de la loi (the mouth that pronounces the
words of the law), mere passive beings, incapable of moderating either its force or
rigor”,24 as Charles de Secondat, Baron de Montesquieu, famously wrote. Not
surprisingly, “the judge’s role in this centralized system is subservient and
bureaucratic. […He] may be required to verify the existence and applicability of a
command but he may not investigate the work of the legislature any further”.25 The
dogma of “la intangibilité de la loi (the intangibility of the law)”26 together with the
myth of the judge as a “syllogism machine”27, then, consolidated during the
20
AUGUSTO BARBERA, LE BASI FILOSOFICHE DEL COSTITUZIONALISMO, 6 (1997)
JEAN JACQUES ROUSSEAU, LE CONTRAT SOCIAL, Book 2, Chapter 1 (1762) Italian Translation by Valentino
Gerratana: IL CONTRATTO SOCIALE, 63 (1965)
21
22
Id., Book 2, Chapter 3. Italian Translation by Valentino Gerratana: IL CONTRATTO SOCIALE, 68 (1965)
23
Id.
24
MONTESQUIEU, L’ESPRIT DES LOIS, Book 11, Chapter 6 (1748) Italian translation by Mauro Cotta : IL
(1995)
PENSIERO POLITICO DI MONTESQUIEU 207
25
STONE SWEET, supra note 16, 26
26
Maria Rosaria Donnarumma, Un mito infranto: l’intangibilité de la loi. Il controllo della ‘ragionevolezza’ delle
leggi in Francia, in 4 DIRITTOE SOCIETÀ (DIR. SOC.) 521, 579 (2007)
Charles Eisenmann, La pensée constitutionnelle de Montesquieu, in LA PENSEE POLITIQUE ET
MONTESQUIEU: BICENTENAIRE DE L'ESPRIT DES LOIS 1748-1948, 133 (Boris MirkineGuetzévitch & Henri Puget eds., 1952)
27
CONSTITUTIONNELLE DE
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nineteenth century and survived in the Fifth Republic notwithstanding the burial of
the parliamentary regime28.
Indeed, when the Framers of the Constitution of 1958 instituted a Conseil
Constitutionnel (Constitutional Council) – endowed with the function, among
others, of exercising a priori constitutional review – their intent was not to create an
organ charged with the duty to protect fundamental rights.29 The Framers, in fact,
intended to create an arm against the deviation of the parliamentary regime.30 “The
function of the Council in this system was made explicit: to facilitate the
centralization of executive authority and to ensure that the system would not
somehow revert to traditional parliamentary orthodoxy”31. The Council itself
originally complied with this understanding: e.g. in the 1962 Loi référendaire32
decision, it refused to review referendum laws, thereby defining itself as a mere
“organ that regulates the activity of the public powers”.33
The peculiarities of French constitutional review indicate the continuity with the
‘Jacobinian’ tradition. According to Article 61(2) – as revised in 197434 - “acts of
Parliament may, before their promulgation, be submitted to the Constitutional
Council by the President of the Republic, the Prime Minister, the President of the
Assemblée Nationale, the President of the Sénat, sixty deputies or sixty senators”. As
such, the Council rules a priori, “on the constitutionality of bills which have been
definitively adopted by Parliament but not yet promulgated by the executive,”35 in
Stefano Ceccanti, La V Repubblica: un lento (e parziale) avvicinamento alle altre forme di governo europee, in
L’ORDINAMENTO COSTITUZIONALE DELLA V REPUBBLICA FRANCESE, 13, 14 (Dominique Rousseau ed., 2000)
28
29
LOUIS FAVOREU & LOIC PHILIP, LE GRANDES DECISIONS DU CONSEIL CONSTITUTIONAL, 177 (2005)
30
TEXTES ET DOCUMENTS SUR LA PRATIQUE INSTITUTIONNELLE DE LA VEME REPUBLIQUE, 5 (Didier Maus ed.,
1978)
31
STONE SWEET, supra note 16, 47
32
Loi referendaire Décision 62-20 DC, 6 November 1962
33
Louis Favoreu, Le Conseil Constitutionnel régulateur de l’activité normative des pouvoirs publics, in REVUE
7 (1967)
DU DROIT PUBLIC (RDP)
34
Before the Constitutional Revision law n° 1974-904 only the President of the Republic, the Prime
Minister and the Presidents of the two Assemblies could refer a law to the Constitutional Council. See:
JEAN JACQUES CHEVALLIER, GUY CARCASSONNE & OLIVIER DUHAMEL, LA VE REPUBLIQUE: 1958-2004
231(2004)
35
STONE SWEET, supra note 16, 8
2008]
A Posteriori Constitutional Review in France
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the absence of a concrete case and only upon referral of five political authorities.36
Therefore, once the law is enacted “it may not be challenged or made subject to any
jurisdictional control other than that of the Parliament itself”.37
Notwithstanding its structural limits, the Constitutional Council remarkably
expanded its role in the course of the years. With a juridical coup d’Etat,38 in the 1971
decision Liberté d’association39 the Council incorporated the Preamble of the
Constitution of 1958 within the bloc de constitutionnalité (norms of reference for
exercising constitutional review).40 The Constitution of 1958 was entirely dedicated
to the framework of government. The Preamble of 1958, on the contrary, recalled
the Declaration of Rights of Men and Citizen of 1789 (the magna charta of individual
liberties) and the Preamble of the Constitution of 1946 (a charter dedicated to social
rights). The effect of the 1971 decision, then, was to invent a compound Bill of
Rights and to transform the Council into an institution charged with the protection
of fundamental rights.41
The “strengthening”42 of the Constitutional Council was also favored by the 1974
constitutional revision that extended the droit de saisine (right of referral) to the
Council to sixty deputies or sixty senators.43 In fact, “by the mid-1970s, the politics
of review [became] a central features of opposition tactics”44 with an increase in the
quality and quantity of cases to be decided by the Council. However, the main
features of French judicial review remained largely unchallenged, as the Council
would still review legislation a priori, abstractly and upon request of political
authorities. Only in the 1990s were several attempts made to reform the system, but
36
GIUSEPPE DE VERGOTTINI, DIRITTO COSTITUZIONALE COMPARATO, 186 (2004)
37
STONE SWEET, supra note 16, 8
Alec Stone Sweet, The Juridical Coup d’Etat and the Problem of Authority, in 8 GERMAN LAW JOURNAL
No.10, 915, 922 (2007)
38
39
Liberté d’association Décision 71-44 DC, 16 July 1971
Bertrand Mathieu & Michel Verpaux, La garantie des droits et libértes, in LE CONSEIL CONSTITUTIONNEL
91, 92 (Michel Verpaux & Maryvonne Bonnard eds., 2007)
40
41
FAVOREU & PHILIP, supra note 29, 254
42
DOMINIQUE ROUSSEAU, DROIT DU CONTENTIEUX CONSTITUTIONNEL ,63 (2004)
43
See, supra, note 34
44
STONE SWEET, supra note 16, 60
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all of them failed45. In the recent comprehensive constitutional reform, though, the
effort proved successful and eventually a form of a posteriori judicial review has
been introduced in France.
C. The exception d’inconstitutionnalité
Article 26 of the constitutional revision bill n° 2008-724 introduces in the French
Constitution a new provision: Article 61-1, will be placed immediately after Article
61 (which, as we saw in the previous section, disciplines a priori constitutional
review). The provision reads as follows:
“(1) When, in the course of a controversy before a judicial court, it is
claimed that a statutory disposition infringes over the rights and
liberties that the Constitution safeguards, the Constitutional Council
may be requested to judge on the issue by referral of the Conseil d’Etat
(Council of State)46 or of the Cour de Cassation (Court of Cassation)47,
which shall decide in a timely manner. (2) An organic law sets the
conditions for the application of this article”.48
Article 61-1 grants the Constitutional Council the power to exercise a posteriori
constitutional review. The technical mean by which this goal is achieved is the
45
A constitutional bill amending the Constitution to introduce a posteriori constitutional review was
submitted to Parliament by the President of the Republic Mitterand on 30 March 1990, under the advice
of the former President of the Constitutional Council Badinter. After two separate votes in the Assemblée
Nationale and the Sénat, however, the two chambers of Parliaments, because of the opposition of the
conservative party, didn’t agree on the same text and therefore the proposal failed. A similar draft
written by constitutional law professor Vedel was later presented to Parliament on 10 March 1993, but
was dismissed by new conservative majority elected in spring. For a historical overview of these event
see: NICOLO ZANON, L’EXCEPTION D’INCONTITUTIONNALITE IN FRANCIA: UNA RIFORMA DIFFICILE 93 (1990);
Didier Maus, Nouveaux regards sur le contrôle de constitutionnalité per voie d’exception, in MELANGES EN
L’HONNEUR DE MICHEL TROPER, 665, 668 (Véronique Champeil-Desplats et al. eds., 2007). The main
features of the two proposal are analyzed by: JEAN LUC WARSMANN, RAPPORT FAIT AU NOM DE LA
COMMISION DES LOI CONSTITUTIONNELLES DE L’ASSEMBLE NATIONALE N. 892-2008 439 (2008) available in
French at: http://www.assemblee-nationale.fr/13/rapports/r0892.asp, last accessed 25 September 2008.
46
The Conseil d’Etat is the French Supreme Court for administrative justice. It hears both recourses
against decrees and other executive decisions as well as appellate cases from lower administrative
courts. Its decisions are final.
47
The Cour de Cassation is the French Supreme Court for civil and criminal justice. It is the main court of
last resort in France (excluding cases of administrative justice, which go before the Conseil d’Etat)
Author’s translation. For the French text consult the Official Journal of the French Republic n. 171 of
July
24th
2008
available
at:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=
JORFTEXT000019237256, last accessed 25 September 2008.
48
2008]
A Posteriori Constitutional Review in France
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exception d’inconstitutionnalité (plea of unconstitutionality), an instrument shared by
all the juridical systems that have attributed the power of constitutional review to
ad hoc, centralized courts, following the theorization of Hans Kelsen. In those
systems, ordinary and administrative judges can not review on their own the
constitutionality of legislation; however, when it is claimed in the course of a legal
dispute that the statute that commands the case is contrary to the Constitution, the
judge may suspend the decision of the case in front of him and recur to the
Constitutional tribunal asking for a ruling on the matter.49
If the Constitutional tribunal does not declare the statute unconstitutional, the
judge may proceed in the decision of the controversy applying the statute in its
ruling. If, otherwise, the Constitutional tribunal does declare the statute
unconstitutional, the judge should decide the case without taking into
consideration the voided statute.50 Accordingly, Article 62 of the French
Constitution, as amended by Article 30 of the constitutional revision bill, affirms
that: “(2) A statutory disposition declared unconstitutional on the basis of Article
61-1 is repealed as from the day of the publication of the ruling of the
Constitutional Council […] (3) The decisions of the Constitutional Council shall not
be subject to appeal to any jurisdiction. They shall be binding on the governmental
authorities and on all administrative and jurisdictional authorities”.51
A peculiarity of the exception d’inconstitutionnalité mechanism recently introduced in
the French Constitution, however, is that not all judges are allowed to recur to the
Constitutional Council and ask whether a statutory disposition infringes over the
rights and liberties that the Constitution safeguards. Indeed, only the top ordinary
and administrative tribunals, i.e. the Conseil d’Etat and the Cour de Cassation, may
defer a matter to the Constitutional Council. When lower judges face a
constitutional question, they shall, on the contrary, submit the matter to their
Supreme Ordinary or Administrative Court. The high court has the duty to verify
the seriousness of the matter in a timely manner; only when the seriousness test is
passed the Constitutional Council may then be called upon to review the allegedly
unconstitutional statute.
49
CAPPELLETTI, supra note 12, 98
Gustavo Zagrebelsky, La giurisdizione costituzionale, in MANUALE DI DIRITTO PUBBLICO, 657, 666
(Giuliano Amato & Augusto Barbera eds., 1991)
50
51
See, supra, note 48
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The choice not to allow lower judges to recur directly to the Constitutional Council
is known as ‘double-filter mechanism’ and has drawn much criticism.52 Indeed,
even though this mechanism has several advantages since, “on one hand it shelters
the Council from being over flooded by lower judges’ referrals, and, on the other
hand it allows the Conseil d’Etat and the Cour de Cassation to participate in the
elaboration of the Council’s case law”,53 the proposal contains various limitations.
In fact, not only the beneficial effects of a direct dialogue between judges and
Constitutional Council will be neutralized,54 but also the achievement of the reform
could be jeopardized. After all, “shouldn’t the high courts be interested in
defending their competences by deferring only an infinitesimal quantity of cases to
the Council and thus making no sense of the reform?”55
The draft constitutional bill elaborated by the comité de sages did not grant to the
Supreme Administrative and Ordinary Courts the power to review the seriousness
of the constitutional question to be submitted to the Constitutional Council. The
‘double filter mechanism’ materialized during the Parliamentary work under the
lobbying of the Conseil d’Etat which, besides a judicial function, also furnishes legal
advice to the Government in drafting legislation.56 Traditionally the most important
French institution, the Conseil d’Etat is very deferential toward the legislature but
endowed of a power of moral suasion vis à vis the other branches of government.57
However, as the Constitutional Council in the course of time strengthened its
position, becoming the prominent institution in the protection of fundamental
liberties, the Conseil d’Etat has seen its prerogatives diminishing.
The success of the Conseil d’Etat in establishing a ‘double filter mechanism’ that
allows it (and the Cour de Cassation) to interfere in the dialogue between the lower
judges and the Constitutional Council may, nevertheless, turn out to be a ‘Pirrus
victory’. Such a complicated mechanism may be a disincentive for lower ordinary
52
ZANON, supra note 45, 129
53
JEAN LUC WARSMANN, supra note 45, 439
Valerio Onida, Giurisdizione e giudici nella giurisprudenza della Corte Costituzionale, in CORTE
COSTITUZIONALE E SVILUPPO DELLA FORMA DI GOVERNO IN ITALIA, 159 (Paolo Barile et al. eds., 1984)
54
The question was raised by professor Mathieu during an interview with the members of the Law
Commission of the Assemblée Nationale and is reported in WARSMANN, supra note 45, 438
55
Aldo Maria Sandulli, La giustizia, in ISTITUZIONI DI DIRITTO AMMINISTRATIVO, 381, 392 (Sabino Cassese
ed., 2004)
56
Andrea Patroni Griffi, Il Conseil Constitutionnel e il controllo della ‘ragionevolezza’, in 1 RIVISTA
ITALIANA DIRITTO PUBBLICO COMUITARTO (RIDPC) 39, 73 (1998)
57
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or administrative judges, dealing with an allegedly unconstitutional statute, to raise
constitutional questions. Moreover, because in the French legal order treaties have a
supra-legislative status, lower judges already have the power to review on their
own whether a statute complies with international treaties (contrôle de
conventionnalité).58 And since there are international conventions that have
catalogues of rights quite comparable to a constitutional Bill of rights, this review
tends to resemble heavily a form of decentralized judicial review.59 When assessing
the impact of the current constitutional reform, therefore, this caveat also needs to
be taken into account.
D. Kelsen in Paris
Beyond the technical debate about the features of the exception d’inconstitutionnalité
mechanism introduced by the recent constitutional revision, the importance of the
reform itself shall be highlighted. The introduction of a form of a posteriori
constitutional review of legislation represents a milestone in the juridical history of
a country that was traditionally hostile to judicial review and the “limitation of
parliamentary sovereignty”.60 Eventually, also in France, individuals will be
allowed to contest, in the course of a concrete controversy, by recurring to the
Constitutional Council (via the Conseil d’Etat and the Cour de Cassation), the
legitimacy of a statue that unjustly abridges the rights and liberties recognized by
the Constitution. As such, this novelty may be appreciated as an “important step of
the development of the Etat de droit (Rule of Law)”.61
From this point of view, the innovation brought forward by the constitutional
revision bill, reconciles the French juridical system with the theoretical and
practical work of Hans Kelsen, who was favourable – as anticipated in the
introduction - towards the realization of “a Verfassungsgerichtsbarkeit (constitutional
justice), that is supportive of granting the function of safeguarding the Constitution
to an independent tribunal”.62 Indeed, according to the Czech jurist, the legal order is
58
MAUS, supra note 45, 675
59
Olivier Dutheillet de Lamothe, Contrôle de constitutionnalité et contrôle de conventionnalité, in MELANGES
1, 13 (Ronny Abraham et al. eds., 2007)
EN L’HONNEUR DE DANIEL LABETOULLE,
60
BARBERA, supra note 20, 13
61
UNE VEME REPUBLIQUE, supra note 2, 90
Hans Kelsen, Wer soll der Hüter der Verfassung sein? in DIE JUSTIZ, 576-628 (1930) Translated in Italian
by Carmelo Geraci: LA GIUSTIZIA COSTITUZIONALE 239 (1981); italics in the original text
62
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a “Stufenbau (hierarchical structure)”63 of norms, on the top of which stands the
Constitution. It is therefore necessary to arrange certain technical means in order to
assure the supremacy of the fundamental norm. Attributing to a specially created
court the concrete function of “voiding the unconstitutional statutes secures the
main and most effective warranty for the Constitution”.64
Moreover, the exception d’inconstitutionnalité introduced by the constitutional
reform, by establishing a ‘double filter’ to be exercised by the Supreme Ordinary
and Administrative Courts, directly evokes the method set up in the Austrian
Constitution written by Kelsen and embodying par excellence the idea of
constitutional justice.65 Indeed, in the 1920 Austrian Constitution, as modified in
1929,66 the “unconstitutionality of an act of Parliament could be alleged only in
front of the Obster Gerichtshof (Supreme Ordinary Court) or of the
Verwaltungsgerichtshof (Supreme Administrative Court), as only those tribunals
could suspend in that case the proceeding pending in front of them and ask the
Verfassungsgerichthof (Constitutional Court) to declare the statute void whenever
they doubted of its constitutionality”.67
A significant indication of the realignment of the French system of constitutional
review with the Kelsenian model of constitutional adjudication is the approval by
the Sénat of amendment n. 321, introducing in the bill a new Article 24-3 affirming:
“In the Constitution, the words ‘Constitutional Council’ shall be replaced by the
words ‘Constitutional Court’”. The socialist Senator (and former President of the
Constitutional Council) Badinter presented the amendment on the following
argument: “The name adopted in 1958 appeared already paradoxical […] as the
institution had essentially a judicial function. This role will be strengthened by the
introduction of the exception d'inconstitutionnalité. It ought therefore be recognized
63
HANS KELSEN, REIHNE RECHTSLEHERE (1934) Translated in Italian by Renato Treves: LINEAMENTI DI
105 (2000)
DOTTRINA PURA DEL DIRITTO,
Hans Kelsen, La garantie jurisdictionnelle de la Constitution (La justice constitutionnelle), in XXXV RDP,
197-257 (1928) Translated in Italian by Carmelo Geraci, LA GIUSTIZIA COSTITUZIONALE, 170 (1981)
64
65
WARSMANN, supra note 45, 435
66
CAPPELLETTI, supra note 12, 94
Hans Kelsen, Judicial Review of Legislation. A comparative study of the Austrian and the American
Constitution, in JOURNAL OF POLITICS (JOUR. OF POL.), 183-200 (1942) Translated in Italian by Carmelo
Geraci, LA GIUSTIZIA COSTITUZIONALE, 308 (1981)
67
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A Posteriori Constitutional Review in France
1309
to the institution its true identity of ‘court’, following the example of its European
homologues”.68
The amendment was later rejected in the Assemblée Nationale and did not appear in
the final version of the revision bill. However, the proposal to change the name of
the institution – “Court and Council, as if it was the difference between a judge and
a consultive committee”69 – also symbolically highlights the spreading awareness
that with the approval of the reform the Council will wear ‘Kelsenian clothes’,
becoming a true judicial institution charged with the duty to review
constitutionality of legislation. Thus in the comparative perspective, the
introduction of a mechanism of a posteriori constitutional review of legislation
certainly terminates the anomaly of the French constitutional model and
determines a convergence with most of the other European systems of
constitutional adjudication, shaped over the Kelsenian prototype.70
In other respects, the shift of the French judicial system toward a Kelsenian ratio,
can be appreciated in the context of the transformation of the European legal space
in a true Grundrechtsgemeinshaft (community of rights).71 Indeed, at the
supranational level, both the European Court of Justice and the European Court of
Human Rights have began taking human rights seriously72 and claiming a
constitutional status73. The human rights’ case law of these two European courts is
becoming increasingly influential and often used as an example even by the
domestic courts of states with well-built ‘legal nationalism’.74 There is, therefore, a
strong incentive (if not duty) for the national jurisdictions to elevate their standard
Available in French at: http://ameli.senat.fr/amendements/2007-2008/365/Amdt_321.html, last
accessed 25 September 2008.
68
69
BARBERA, supra note 20, 13
70
ANDREA MORRONE, IL CUSTODE DELLA RAGIONEVOLEZZA, 506 (2000)
Armin Von Bogdany, The European Union as a Human Rights Organization?, in 37 COMMON MARKET
LAW REVIEW (CML REV), 1307, 1308 (2000)
71
Marta Cartabia, L’ora dei diritti fondamentali nell’Unione Europea, in I DIRITTI IN AZIONE, 1, 37 (Marta
Cartabia ed., 2007)
72
Luzius Wildhaber, A constitutional future for the European Court of Human Rights?, in 23 HUMAN RIGHTS
LAW JOURNAL (HRLJ) 161 (2002)
73
74
Joel Andriantsimbazovina, La prise en compte de la Convention européenne des droits de l’homme par le
Conseil Constitutionnel, in 18 CAHIERS DU CONSEIL CONSTITUTIONNEL 1 (2004); MAUS, supra note 45, 673;
Jacques Ziller, L’européisation du droit : de l’Elargissement des champs du droit de l’Union européenne à une
transformation des droits des Etats membres, in EUI Law Dept. Working Papers No.19, 6 (2006)
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of rights’ protection to comply with the growing attention to fundamental liberties
at the European level.75
France’s paradox was that while individuals had, since the eighteenth century, the
right to contest the legality of an executive decree in front of the administrative
judge (i.e. the Conseil d’Etat), they did not have any means to defend their rights at
the national level from an unconstitutional statute. Individuals now have at their
disposal, however, effective remedies at the supranational level and may benefit of
a last resort mechanism in front of the European Court of Human Rights. From this
point of view, as Prime Minister Fillon acknowledged, with the constitutional
revision bill “this French idiosyncrasy ends”.76 Even though the reform does not
establish an individual direct recourse to the Constitutional Council, like the
German Verfassungsbeschwerde (Constitutional complaint), the introduction of a
posteriori constitutional review significantly strengthens the protection of individual
rights at the domestic level.77
Moreover, by amending the 1958 Constitution with the introduction of the exception
d’inconstitutionnalité the revision bill n° 2008-724 recognizes that democracy today
finds its raison d’être “in pluralistic social and institutional systems, empowered by
the progressive erosion of the classical concept of sovereignty as a consequence of
the processes of international and supranational institutional integration”.78
Contemporary multicultural societies are characterized by a growing concern and
demand for individual liberty.79 The ‘Jacobinian’ belief that liberties are created and
secured through the activity of a god-almighty legislature is thus gradually
substituted by the consciousness that the will of the majority may violate the rights
75
Diletta Tega, La CEDU nella giurisprudenza della Corte Costituzionale, in 2 QUAD. COST. 431 (2007)
The speech of Prime Minister Fillon at the Assemblée Nationale on May 20th 2008 to present the
constitutional revision bill is available at: http://www.assemblee-nationale.fr/13/cri/20072008/20080161.asp#INTER_0, last accessed 25 September 2008.
76
77
MAURO CAPPELLETTI, LA GIURISDIZIONE DELLE LIBERTÀ (1955)
78
MORRONE, supra note 70, 524
See, among others: NORBERTO BOBBIO, L’ETÀ DEI DIRITTI (1992), GUSTAVO ZAGREBELSKY, IL DIRITTO MITE
97 (1992); PETER HÄBERLE, DIRITTO E VERITÀ (2000); ALESSANDRA FACCHI, I DIRITTI NELL’EUROPA
MULTICULTURALE 21 (2001); ANTONIO CASSESE, I DIRITTI UMANI OGGI 3 (2005); Jürgen Habermas, Lotta di
riconoscimento nello stato democratico di diritto, in MULTICULTURALISMO, 63 (Jürgen Habermas & Charles
Taylor eds., 2005); ALESSANDRA FACCHI, BREVE STORIA DEI DIRITTI UMANI 144 (2007);
79
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A Posteriori Constitutional Review in France
1311
of the minority and by the ‘liberal’ confidence that a better deal is to empower
judges of the duty to enforce individual rights.80
In other words, the introduction in France of a form of a posteriori constitutional
review of legislation embodies a transition from the logic of Rousseau, - of the
inanimate judge bouche de la loi, expression of a general will that may never be
wrong - to the logic of Kelsen. Here, the constitutional judge is the guardian (Hüter)
of the fundamental values enshrined in the Constitution - a living institution that
safeguards the principle of pluralism and the individual liberties whenever the
exercise of the majority power degenerates into tyranny. Kelsen’s vision, by
recognizing that the majority may express its wishes in so far that it does not violate
the rights of the individual, represents a successful attempt to balance the need of
unity with the desire of pluralism.
E. Conclusion
French academics and politicians have been conscious for the last twenty years of
the need to renovate the 1958 Constitution, especially of the need to introduce a
new form of a posteriori constitutional review of legislation. Notwithstanding the
fact that all such proposals failed, the reform was seen as something “that for sure
[was] about to happen, soon or later”.81 Therefore, even though the revision bill was
approved in Congrès only by a one vote-majority, with the conservative and centrist
members of Parliament voting in favour of it and the socialist against it (with the
noteworthy exception of the socialist Deputy and vice President of the comité des
sages Lang), there was a wider consensus on the suitability of the reform. Moreover,
many of the innovations contained in the revision bill, such as the proposal to
introduce a form of a posteriori constitutional review, had been for many years a
battle horse of the left and strongly opposed by the conservative right.82
Just to recall some of the wide literature on the issue, see: Ronald Dworkin, TAKING RIGHTS SERIOUSLY
(1977); RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION, 17
(1996); BARBERA, supra note 20, 10; MORRONE, supra note 70, 508; Giorgio Bongiovanni, Spirito protestante,
libertà religiosa e Dichiarazioni americane e francese, in LA DICHIARAZIONE DEI DIRITTI DELL’UOMO E DEL
CITTADINO DI GEORGE JELLINEK, v, xviii (Giorgio Bongiovanni ed., 2002); MICHAEL IGNATIEFF, UNA
RAGIONEVOLE APOLOGIA DEI DIRITTI UMANI, 34 (2003); Dieter Grimm, Il significato della stesura di un
catalogo europeo dei diritti fondamentali, in DIRITTI E COSTITUZIONE NELL’UNIONE EUROPEA, 5 (Gustavo
Zagrebelsky ed., 2003); Armin Von Bogdany, Il costituzionalismo nel diritto internazionale, in POPOLI E
CIVILITÀ, 183 (Gustavo Gozzi & Giorgio Bongiovanni eds., 2006)
80
Louis Favoreau, La questione préjudicielle de constitutionnalité, in MELANGES EN L’HONNEUR DE PHILIPPE
ARDANT, 265 (Guy Carcassonne et al. eds., 1999)
81
82
Stefano Ceccanti, Ora la Francia è un pò meno gollista, in IL RIFORMISTA, 22 July 2008
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A recent interview in French newspaper Le Monde83 gives evidence of the bipartisan
support for the introduction of the exception d’inconstitutionnalité. Asked to
comment on the new Article 61-1 of the French Constitution, the gaullist Deputy,
former Prime Minister and President of the comitè des sages, Balladur affirmed that
this innovation “is one of the most important measures that we propose”.
However, the socialist Senator Badinter had also declared in the same interview, “I
am obviously favourable to the exception d’inconstitutionnalité […] In a democracy, it
should not be given effect to an act of Parliament that is contrary to the
fundamental rights of citizen. This is a primary necessity. This reform is therefore a
step forward”.
Indeed, the introduction of a posteriori constitutional review represents a milestone
innovation in French constitutional history. The design of this new legislative
reality undeniably represents a change in paradigm, that was made possible by
peculiar political and historical conditions.84 On one hand, there is increasing
attention towards human rights at the European level. On the other hand,
contemporary societies become more pluralistic and multicultural. The concern for
a stronger protection of fundamental rights and liberties, under both internal and
external pressures, is at the core of this institutional change. Even though certain
caveats are necessary, it is likely that a posteriori constitutional review will shape the
life of the Fifth Republic in the years to come. Embracing the Kelsenian model of
constitutional adjudication means breaking with the ‘Jacobinian’ constitutional
tradition that considers the law as the expression of a general will that may never
be wrong, but also putting the individual, with his bundle of rights and liberties, at
the heart of the constitutional cosmos.
83
Gerome Courtois, Réforme constitutionnelle: Badinter face à Balladur, in LE MONDE, 11 June 2008
84
HOFFMANN-RIEM, supra note 18, 689

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